Need To Knowtes

Rules for Them, Rules for Us

The 1991 Telephone Consumer Protection Act (TCPA) prohibits businesses from making auto-dialed or pre-recorded calls to a person's cell phone and similar telemarketing calls to home phones. However, this law does not apply to the federal government, nor to contractors working on the government's behalf. The only prohibition for the feds is political campaign telemarketing (RCReader.com/y/ntk1).

In January, 2016 SCOTUS ruled (Campbell-Ewald Co. v. Gomez) that the government is exempt because of sovereign immunity, falling outside the TCPA's definition of a person: “The TCPA is codified within the Communications Act, which defines 'person' to 'include an individual, partnership, association, joint-stock company, trust, or corporation.'”

Consequently, on June 8, 2016, the Federal Communications Commission (FCC) adopted its own Declaratory Ruling (FCC 16-72). It is interesting to note that in Citizens United, SCOTUS based its controversial ruling on corporations having “person” status. Because the United States of America is itself a corporation, it follows that it, too, has“person” status and should arguably not be exempt (RCReader.com/y/ntk2).

Sovereign Immunity, while not specified in the U.S. Constitution, is a legal construct underpinned by the curious principle that governments cannot be sued by courts whose powers were created by government in the first place. This inference mirrors “English common law legal maxim rex non potest peccare,” meaning “The King can do no wrong.” Basically, the federal government, states, and various public-sector entities cannot be sued without first consenting to it, except for a few very specific statutes that waive immunity.

There are two categories of Sovereign Immunity: “Absolute immunity: When absolute immunity applies a government actor may not be sued for the allegedly wrongful act, even if that person acted maliciously or in bad faith; and Qualified immunity: When qualified immunity applies the government actor is shielded from liability only if specific conditions are met, as specified in statute or case law.” If it can be demonstrated that the government acted in bad faith, then it can be sued for damages, but the actions must be unambiguously demonstrable in harm caused. Government actors, such as prosecutors, judges, law enforcement officials, myriad agencies' bureaucrats, and elected officials, too often ride a disturbingly thin line, acting with impunity based on sovereign immunity. The public should insist congress revisit this extraordinary privilege to remove carte blanc immunity and include statutory prosecution and consequences (both criminal and civil) for actors where abuses prevail (RCReader.com/y/ntk3).

 

Tech Giants Have It Both Ways

Facebook, Twitter, Google and YouTube, et al, have government-sanctioned exemptions from consumer lawsuits based on their declared status as “neutral platforms.” Therefore, activities such as shadow banning and censorship arguably violate the conditions of their exemptions.

Section 230 of the Communications Decency Act (CDA) was designed to protect service providers from fallout due to content they have no part in producing, yet provide on their platforms. As third-party conveyors, Section 230 of the CDA guarantees free speech online by shielding Internet service providers (ISPs), social-media platforms, and other such providers from lawsuits that could otherwise arise (RCReader.com/y/ntk4). While Section 230 is not without relevant controversy, it errs on the side of the First Amendment and an open Internet that would otherwise be arguably compromised by the CDA itself, seen by many as codified First Amendment infringement (RCReader.com/y/ntk5).

However, when the same ISPs and social-media companies purposefully engage in subjective censorship of content, they violate the very condition of immunity that protects them. These monopolies don't get to have it both ways. Either they operate as neutral platforms, allowing all content without subjective cherry-picking, and enjoying immunity form user lawsuits, or they don't. If they act as gatekeepers for preferred content, then they should by default also lose any protection from consumer lawsuits. Claiming neutrality while violating certain users' First Amendment rights via subjective censorship, yet continuing to enjoy immunity from legal challenges permits these social media and ISP monopolies to engage in government-sanctioned censorship and discriminatory business practices on an epic scale.

This immunity can be particularly egregious considering these monopolistic providers act as public squares, as well as aggregators of massive amounts of personal data unimaginable a decade ago. Most of these services, including Amazon, collect detailed personal data, then reorganize and sell it according to customer specification. Consider that the U.S. government is the largest and most lucrative client for each of these tech giants, each providing data collection and analysis that is otherwise disallowed by the U.S. Constitution for the government to collect and compile on its own. But nothing stops the public sector from being end-users of personal data aggregated, compiled, and very specifically organized by private-sector companies who have no such limits. In other words, Facebook, Twitter, Google, YouTube, and Amazon, all of whom have limitless control over users' personal information, do the data collection for governments who are strictly prohibited by law from engaging in what the U.S. Constitution considers invasions of privacy.

 

Government Gone Rogue

National Security Letters are administrative subpoenas, and arguably fall outside the U.S. Constitution in violation of the Fourth Amendment. (Court challenges have argued the constitutionality of NSLs as applied to both the First Amendment and the Fourth Amendment.) NSLs originated with Congress and the Bush Administration after 9/11 as part of the U.S. Patriot Act. NSLs require telephone companies, Internet service providers, banks, credit bureaus, and other businesses to produce highly personal records of their customers and subscribers without a judge's approval. Furthermore, any disclosure to customers/subscribers that their records have been turned over is forbidden on threat of felony charges (RCReader.com/y/ntk6).

The U.S. Supreme Court has ruled that certain data seized by the FBI via NSLs is not constitutionally protected because there is no “reasonable expectation of privacy,” especially if the person has already provided the data to a third party, such as his/her telephone company (i.e. phone calls/numbers are logged for billing purposes). Therefore, no judge's approval is required for FBI to covertly seize the data. The recipient of an NSL may challenge the nondisclosure provision in federal court. However, in some cases, the data seized is deemed classified and thus restricted to the person whose data was seized, including his/her attorney(s) for defense purposes.

Government's ability to search/seize personal private records using NSLs, strictly as part of a national security investigation, is that person's expectation of privacy. This litmus test is twofold: (1) Government's action must violate an individual's actual, subjective expectation of privacy; and (2) expectation of privacy must be what society would recognize as reasonable. It is interesting to note that before WiFi and cell-phone technology, individuals' activities using land-line phones enjoyed the protections of our Fourth Amendment. Phone numbers were also logged for billing purposes by third-party providers. So what is the construed difference in the constitutional protections of digital versus analog services (RCReader.com/y/ntk7)?

In 2007, Department of Justice Inspector General Glen Fine completed an audit of the FBI's use of NSLs and found serious abuses in process, ranging from nonexistent investigations, unauthorized signatures (exigent letters), and a host of other unlawful liberties in issuing NSLs. The audit found that in 2002, the FBI (under the supervision of Robert Mueller, whose authority as director is expressly required for each NSL) issued approximately 8,500 NSLs, but by 2004, issuance had risen to approximately 56,000. Over the three-year period, more than 152,000 NSLs were issued, with an estimate of 7,000 being improperly or illegally let. According to the Electronic Frontier Foundation who also provided a comprehensive study, Patterns of Misconduct: FBI Intelligence Violations From 2001 – 2008, on abuse of power by the FBI, the average time lag between a violation/abuse and its reporting is two-and-a-half years. While this information was based on misconduct that occurred more than 10 years ago, history matters more than ever, as Americans awaken to our government's increasing departure from the rule of law (RCReader.com/y/ntk8).

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